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Archives: 02/2008

I’ve taken issue with plenty of things Ted Kennedy has done in the past, most recently his suggested reforms to the judicial confirmation system. My response [$] to his proposals was essentially that he ought to go back to Civics 101 and learn the difference between law and politics, and between the respective powers of the judicial and legislative branches.

Apparently, someone on Kennedy’s staff has done just that because this week the good senator introduced two bills designed essentially to remedy what he sees as Supreme Court error in the field of employment discrimination. This action naturally caught the attention of the New York Timeseditorial page:

One of the most troubling rulings was in the case of Lilly Ledbetter, a supervisor at a Goodyear Tire and Rubber Company plant who was paid less than her male colleagues after she was given smaller raises over several years. The court’s conservative majority ruled that Ms. Ledbetter had not met the 180-day deadline to file her complaint. It insisted that the 180 days ran from the day the company had made the original decision to give her a smaller raise than the men.

….

The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo the injustice of the Ledbetter decision by establishing that the 180-day deadline runs from when a worker receives the unequal pay, not when the employer decided to discriminate. It would make clear that each discriminatory paycheck restarts the clock.

Kennedy’s other bill, the Civil Rights Act of 2008, would reverse more bad decisions. One of these is a 2001 ruling that says that people who are discriminated against in programs using federal funds can sue only for intentional discrimination, not for actions that have a discriminatory effect.

Kennedy, wittingly or not, has just demonstrated how our constitutional system of checks and balances and separation of powers should work — as well as illustrating the difference between law and politics.

The Fair Pay Restoration Act is Congress’s proper (legislative) response to the Supreme Court’s proper (judicial) decision in the Ledbetter case. The Court had no choice but to rule the way it did under the relevant (and constitutionally valid) law, even if the result was arguably unjust. The correct response is, as has happened here, to propose a bill changing that law, not to urge judges to ignore it and rule as they see fit.

Similarly, the Civil Rights Act of 2008 is a legislative attempt to correct a perceived failing in employment discrimination law as correctly interpreted by the judiciary. The wisdom of allowing people to sue for actions that have “discriminatory effect” without an intent to discriminate — whatever that means and however it can be established for legal purposes — is debatable, but it is only through congressional action (with the president’s assent or properly overridden veto) that the law can change.

The bottom line is that judges — including the highest court in the land — have the power only to interpret the law (constitutional and otherwise), not rewrite it or otherwise legislate from the bench. I’m glad that Kennedy has thus decided, for this week at least, to use his lawful authority to legislate from the legislature — instead of merely railing against a judiciary that does nothing more nor less than its job.

Free trade has come under withering fire during this election season, with Lou Dobbs–style populism on the rise. The Democratic candidates have fallen over themselves to criticize NAFTA, trade with China, and the alleged harm trade has done to the U.S. economy. So it was refreshing this morning to read an unapologetic endorsement of trade expansion from one of the Republican presidential campaigns.

In an op-ed in today’s Wall Street Journal, one of Sen. John McCain’s senior policy advisers, Douglas Holtz-Eakin, offered this description of what kind of trade policy the Arizona Republican would pursue as president:

Mr. McCain will re-affirm American leadership in global trade. It is essential that American workers have access to the 95% of the world’s customers that are outside our borders. The U.S. should engage in multilateral, regional and bilateral efforts to reduce barriers to trade, level the global playing field and build effective enforcement of global trading rules. Opening new markets for trade in goods and services is an indispensable aspect of economic freedom, for entrepreneurs and workers, and a proven road to greater prosperity.

As a student of history, Mr. McCain rejects those who preach the false virtues of economic isolationism — those who urge the U.S. to bury its head in the sand. The world made the grave error of building walls against trade 75 years ago, which contributed to the Great Depression. Since then, the U.S. has been in the forefront of the fight for reduced barriers to trade. It has reaped the benefits of sustained growth in standards of living, an awesome display of innovation and technical advance, an explosion in the variety, quality and affordability of consumer goods, a rise in home ownership, and ascendancy to the position of world’s greatest economy.

Well said. Note that McCain’s adviser even touts the consumer benefits of import competition through more variety and quality and lower prices. Politicians almost never seem to care about whether consumers benefit from trade policy, preferring to carry water for the noisiest producers complaining about pesky foreign competition.

In contrast, a nearby op-ed by a supporter of Mitt Romney devoted only one sentence to trade, and the line was more ominous than optimistic: “Our jobs are being sought by new competitors from nations like China and India.”

That sentence on trade was sandwiched between a grim warning about “violent, radical jihadists” and our government’s spending binge — as though imported shoes and laptops from China and tech-support call centers in India were “challenges” to our nation on a par with al Qaeda and out-of-control federal spending.

My Cato colleague Mike Tanner has thoughtfully dissected the strengths and weaknesses of both McCain and Romney elsewhere on the Cato blog, but on trade policy, McCain’s team was the clear winner in today’s skirmish.

As Cato’s new research fellow for Defense and Homeland Security (and someone who’s written extensively on how the terror threat to the United States is hardly an “existential” one), I was glad to see this headline on the cover of latest Rolling Stone (right behind the left ear of Radiohead lead singer Thom Yorke): “The Fake Domestic Terror Threat: How the FBI Became a Factory of Fear” — even if it’s a bit hyperbolic. (The article is not online.)

The author, Guy Lawson, does not tell readers much that they could not have gathered from the Washington Post or the New York Review of Books. But he repeats something that bears repeating: Six plus years of fevered searching for terrorists on American soil has turned up precious little of the real thing.

The hunt, led by the FBI, has found several wanna-be jihadis willing to sign up for phony terror plots often organized by FBI informants, various illegal immigrants with shady overseas connections, a number of people gathering funds for foreign terrorist organizations, and only a handful of true terrorists (and not particularly formidable ones). A report from NYU’s Center for Law and Security finds that from September 11, 2001 through September 11, 2006, only “four individuals have been convicted of federal crimes of terrorism” in the United States and “no sleeper cell with logistical or tactical links to al Qaeda has been convicted of plotting an attack to be carried out within the U.S.” That means we have found no terrorist sleeper cells in the United States since September 11, as the FBI admitted.

Time and again, federal officials held press conferences to announce the break-up of a terrorist plot and vaguely described the disaster prevented. The evening news and the headlines repeated their lurid claims. Months later, the inside pages of the papers would report that the plot was not what we were told — and TV doesn’t even bother. The plans have turned out to be unfeasible or preliminary. On otheroccasions, it turned out the plotters visited a terrorist camp but did little plotting. Some charges have been dismissed. Some have been completelybogus.

Experts, like an FBI agent Lawson quotes, say that just because you haven’t found something, it doesn’t mean it’s not there. That’s indisputable. But when several federal agencies, local police, alarmed citizens, and ambitious federal prosecutors search for terrorists for years and find almost none, you have good evidence that there just aren’t many to find. To that some will say that absence of evidence isn’t evidence of absence. But that expression is illogical. If you spent two hours spent searching your car for your lost wallet, it is good evidence that it’s not there, though it’s not proof.

Don’t mistake me. The domestic terror threat is not altogether false. Most of those the government has prosecuted in the name of counter-terrorism should have gone to prison or been deported, and the FBI should not quit looking. The point is simply that the threat is greatly exaggerated.

Without that exaggeration it would be harder, obviously, to justify illegal wiretapping and other brazen assertions of unconstitutional executive power. Lawson mentions another consequence of overreaction to domestic terrorism; one that is mostly ignored: fewer resources devoted to fighting good old-fashioned crime. He quotes a Northern Illinois police officer frustrated by the funds the FBI devotes to chasing terrorists when there is plenty of real federal crime going unsolved and wonders if this is the best use of our tax dollars. He could have gone further.

The FBI has shifted about 2,400 agents from crime to counter-terrorism in recent years, despite the doubling of its topline budget — now $6.4 billion. The result is likely more fraud, more racketeering, more mafia. In a 2005 report, Justice Department inspector general Glenn Fine notes that the FBI opened 45 percent fewer criminal investigations in 2004 than 2001 and referred 27 percent fewer cases to a U.S. Attorney for prosecution. Cases opened on violent crime dropped 47 percent, financial crimes 40 percent, public corruption 42 percent and American criminal enterprises — often the mafia — 50 percent.

Even readers skeptical about the merits of federal policing ought to agree that it is wiser for the feds to chase real criminals than imaginary terrorists. As Jim Harper recently said here, terrorists usually impose large costs only by inducing the unwitting help of their victims. By encouraging the FBI to ignore its traditional responsibilities, we magnify the costs of terrorism. A recalibration of priorities is in order. But American politics being what they are, that will take a few hundred more articles like Lawson’s.